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517 F.

2d 628

Dr. Carlos Bustamonte RICON, alias Harold B. Richardson


alias Jesse Lewis, Appellant,
v.
Warden, Sam P. GARRISON, Central Prison, Raleigh, N. C.
and
State of NorthCarolina, Appellees.
No. 74-1426.

United States Court of Appeals,


Fourth Circuit.
Argued March 7, 1975.
Decided May 28, 1975.

Patricia W. Weinberg, Arlington, Va. (court-appointed) for appellant.


Richard N. League, Asst. Atty. Gen. (Rufus L. Edmisten, Atty. Gen. of
North Carolina, on brief), for appellees.
Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
DONALD RUSSELL, Circuit Judge:

The petitioner, a North Carolina prisoner convicted of the crime of breaking and
entering, sought habeas relief, claiming a violation of his right to a speedy trial
under the Sixth Amendment. Exhaustion of state remedies was conceded. On
the state record, the District Court denied relief and this appeal followed. We
affirm.

The prosecution of the petitioner actually began in 1955. In February of that


year, he was tried and convicted on three charges of forgery and on a charge of
breaking and entering. He received a sentence of not less than 3 nor more than
4 years on the forgery convictions and of not less than 7 nor more than 10 years
on the breaking and entering conviction, to be served consecutively. In August
of that same year, he was convicted and sentenced to prison for two years on an
escape charge and for 10 years on a charge of secret assault with a deadly

weapon with intent to kill, the sentences to be served consecutively.


Subsequently, he escaped from prison on two occasions and was out of custody
(1) from November, 1955, to September, 1956, and (2) from October, 1957 to
July, 1965.1 While a fugitive, he was arrested and convicted in 1963 in the
State of Pennsylvania of illegally practicing medicine under the name of Harold
B. Richardson. He received a sentence of 2 years on this offense. As a result of
this imprisonment, he was identified as a fugitive from North Carolina and at
the completion of his imprisonment in Pennsylvania, he was returned to North
Carolina for the completion of his sentences in that State where he was known
as Jesse B. Lewis. Immediately on his return to North Carolina, he began a
series of pro se proceedings in both state and federal courts seeking release,
claiming that he had "never visited" North Carolina until forcibly and illegally
returned through extradition proceedings, had never committed "any crime" in
that State and was accordingly imprisoned improperly and unconstitutionally in
that State. He went further, asserting that he was a doctor, "a refugee from
Haiti" involved "in service with the Central Intelligence Service." It was
established, however, by means of fingerprint records that the petitioner was
"known by numerous other names and aliases" than Richardson and Lewis but
that he was the same person, whether using the name Richardson or Lewis. He
filed at least four proceedings in the District Court setting up this claim of
misidentification and prosecuted three appeals to this Court from the denial of
relief on that ground. These proceedings continued as late as May, 1970.
3

He completed service of his sentence under the forgery conviction in


September, 1966 and began service of his sentence on the breaking and entering
charge at that time. In February, 1967, he filed in state court another habeas
proceeding, claiming again that he was Dr. Harold B. Richardson, not the
defendant Lewis and asserting somewhat inconsistently that Lewis had not been
represented by counsel at his convictions in 1955. A hearing was accorded the
petitioner on that claim in the state court and it was determined again that the
petitioner was the defendant Lewis. But, in the course of that habeas hearing, it
developed that the petitioner had not been represented by counsel at his 1955
convictions and the state court invalidated all of the 1955 convictions, with
leave to the State to retry. An order to this effect was entered in February,
1967.2 At the same time, the Court on its own motion ordered the petitioner
committed to a state mental hospital for determination of his competency to
stand trial. It was not until April 12, 1967, that the petitioner was determined to
be competent to stand trial.

After the petitioner had been adjudged competent to stand trial, the State
apparently chose to proceed first on the charge of secret assault and, at the
instance of appointed counsel, trial on that charge was delayed until October,

1967, when he was tried and convicted. From this conviction, he appealed and
was granted a new trial in November, 1968.3 Retried on this charge in May,
1969, he was again convicted and this conviction was affirmed in 1970.4 On
April 1, 1970, counsel was appointed to represent the petitioner on the charge
of breaking and entering. At the same time the petitioner was prosecuting pro se
in the District Court another action in which he raised the issue of
misidentification. Counsel, appointed to represent him on the breaking and
entering charge, raised the issue of speedy trial as well as the competency of the
petitioner to stand trial on June 1, 1970. As a result of this action, the court
concluded first to order a mental examination of the petitioner. In October,
1970, the case was called for trial, but, upon renewal of the plea of
incompetency and after a hearing on the petitioner's competency to stand trial,
the petitioner was found incompetent and was ordered returned to the State
Mental Hospital. He remained at the Hospital until August, 1972, when he was
finally found competent to stand trial. To permit counsel for the petitioner to be
present and submit motions, trial was delayed until November, 1972, when he
was tried, convicted, and sentenced to not less than 3 nor more than 5 years'
imprisonment, with credit for prior confinement. It is that conviction which the
petitioner assails in this habeas proceeding on "speedy trial" grounds.
5

In applying this "balancing test," as mandated by Barker, the first issue is


necessarily the extent of delay. The parties differ substantially in their
calculations of the delay in this case. The petitioner insists the starting point for
determining the length of the delay is the date of petitioner's original indictment
and trial in 1955. It is the position of the State, on the other hand, that, in
calculating the delay, we should start with the date in 1967 when petitioner's
original conviction was invalidated and the petitioner was found competent to
stand trial. We are persuaded that the latter view is the correct one. Until March
18, 1963,6 it was generally assumed in most states to be unnecessary to appoint
counsel in any criminal case other than those involving a capital offense.
Accordingly, when the defendant was originally tried in 1955 it was not
considered incumbent on the court to appoint counsel for him. Prior to Gideon
the State had no reason to assume that the failure to appoint counsel in a noncapital case would invalidate a conviction; and, after Gideon it is to demand too
much of the state that it should have reviewed all convictions prior to Gideon to
ascertain whether the defendant in every case, such as the petitioner, either was
afforded or validly waived counsel. Until 1967 the State had not been put on
notice that the petitioner was without counsel when convicted in 1955. Under
the circumstances, the State should not be charged with the delay between 1955
and 1967. This is particularly so in this case, since during a substantial period
of this delay, the petitioner was a fugitive, having escaped from custody.

The State, also, contends that the periods when the petitioner was either under
observation to determine his competency to defend himself or was under
treatment for mental disability should not be considered in calculating the
length of delay. Both the State Court, in its decision on the petitioner's postconviction proceedings, and the District Court, in the habeas proceeding there,
concurred in this view. We are in agreement. As one Court has put it, where the
delay results from a concern by the trial court over the mental competency of
the defendant to stand trial, "the courts have been exceedingly reluctant to find
constitutional infirmity even in very long delays."7 Indeed, if the trial court did
not exercise a zealous concern in safeguarding a possibly incompetent
defendant in his rights, it would properly be subject to censure and could render
by its want of concern the conviction, if secured, open to attack. Rather than
being penalized for seeking assurance of the mental competency of the
petitioner before ordering him to trial, the State should be commended.

Measured under the principles just stated, the delay in this case was
approximately 36 months. That is unquestionably substantial delay. It is not,
however, as great as the delay in Barker itself, where the delay was in excess of
five years, or in many other cases where the courts have found no infringement
of the right to a speedy trial.8 It is, though, a sufficiently "unusual" delay to act
as a "triggering mechanism" to require inquiry into the other factors that enter
into the balancing test mandated by Barker,9 but it still "is only one of several
factors to be weighed and balanced in determining whether the right to a speedy
trial has been denied."10

The second factor, which Barker orders considered in this connection, is the
reason for the delay. The record establishes that there was no attempt by the
State to bring the petitioner to trial on the charge of breaking and entering
between April 12, 1967 and April 1, 1970, when counsel was first appointed
for the petitioner in this case.11 The petitioner makes no claim that the State had
delayed trial in order to hamper the defense or to gain an advantage, and the
record does not suggest that, in the language of the North Carolina Court, the
delay was "the studied choice of the prosecution."12 The record is, however,
silent on the reason for this delay. It may have been that, because the petitioner
was already serving another sentence, the State chose to give trial priority to
defendants who had not been previously convicted and were not currently
serving valid sentences. While such a reason has been declared not
"irrational",13 the mere fact that one is already under sentence as a result of
another charge is not a complete justification for delay in his trial on other
pending charges.14 In the absence of any explanation by the State for its sloth,
the conclusion that simple neglect or perhaps an overcrowded docket was the
reason for the delay in this case is plausible. Such a delay, though more

"neutral" than intentional delays, is still viewed with disfavor but is not heavily
weighed in the balancing test.15
9

It is conceded that until June, 1970, the petitioner made no demand for trial. To
some extent this failure can be excused because it was not until April 1, 1970
that counsel was appointed for the petitioner and such counsel promptly raised
the claim on June 1, 1970.16 The State Court observed in this connection,
however, that it was "obliged to take note of the many petitions filed in the
court by defendant without benefit of counsel seeking relief as to other
matters."17 And the record in this Court and in the District Court shows that the
petitioner was persistently invoking pro se the aid of the Court in challenging
his convictions. Despite all this, we are not, though, inclined to hold against
him his failure earlier to assert his claim. At best, it would be largely a "neutral"
factor in the application of the balancing test, just as the State's neglect in
pressing the prosecution might be regarded as a "neutral" factor.

10

This brings us to the question of prejudice, which, while not an essential to the
establishment of a violation of the right,18 is a prime issue19 and a "critical
factor."20 The burden of establishing prejudice rests on the petitioner.21 In this
case, the petitioner asserts but two grounds for a finding of prejudice: 1. The
death of a witness; and 2. The loss of the opportunity for a concurrent
sentence.22 Neither ground seems to have any merit. The witness, whose death
represented an alleged prejudice to the petitioner in the presentation of his
defense, died in the 50's, almost a decade before the petitioner asserted his
claim that his prior conviction was invalid and before he was granted at his
instance a retrial. Nor can it be argued that petitioner suffered any prejudice by
the loss of an opportunity for a concurrent sentence. The petitioner was
convicted at least seven times in connection with his 1955 offenses and at no
time was he given a concurrent sentence; in every instance, the Court imposed
consecutive sentences. We cannot hold that, in the face of this record, there was
any possibility of a concurrent sentence for the petitioner. We agree with both
the State Court and the District Court that, to use the language of the Court in
United States v. Alo, supra, petitioner "failed not only in demonstrating actual
prejudice in any respect, but also in establishing the credible possibility of
prejudice."23

11

In balancing all the factors discussed, which Barker mandated for


consideration, we find no error in the result reached by both the State Court and
the District Court that there was no infringement of petitioner's right to a speedy
trial in this case. We must express, however, serious concern over the delay on
the part of the State in seeking a retrial in this case. In situations where the State
has been granted the right to retry following the allowance of habeas relief, it

should be particularly solicitous of the defendant's right to a speedy trial. We


would not like to be understood as condoning any unusual delay in such cases.
Were it not for our conclusion that there was no real prejudice, it is possible the
result in this case would have been different.
12

Affirmed.
CRAVEN, Circuit Judge (concurring):

13

I concur in the result.

14

I share Judge WINTER's viewpoint that a prosecutor may not constitutionally


delay a trial for the purpose of pyramiding punishment, but whether that was
the reason for the delay was not factually explored below, and I am unwilling
to draw the inference from the speculation of an assistant attorney general who
was not the prosecutor.
WINTER, Circuit Judge (dissenting):

15

I am in complete agreement with the majority's admonition that "(i)n situations


where the State has been granted the right to retry following the allowance of
habeas relief, it should be particularly solicitous of the defendant's right to a
speedy trial." But, I would conclude that on this record and in accordance with
this principle, application of the balancing test of Barker v. Wingo, 407 U.S.
514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), compels defendant's immediate
release.

16

The record discloses no valid reason for the state's delay in retrying Ricon on
the charge of breaking and entering after he had been adjudged competent to
stand trial in April, 1967. During oral argument, however, counsel for the state
informed us that he inferred that the trial on the charge of breaking and entering
had been delayed until after the trial and conviction for secret assault because
the prosecutor had an objective of total imprisonment which he thought Ricon
should receive, and Ricon would not have been prosecuted for breaking and
entering had his punishment for secret assault fulfilled that objective.* I accept
the inference drawn by one having intimate knowledge of the motives and
practices of North Carolina prosecutors, but to me the reason inferred was an
impermissible one to have delayed the trial. Sentencing is a function of the
judiciary, not the prosecutor. Moreover, delay by the prosecutor for the reason
of fulfilling the prosecutor's desired punishment intensifies the anxiety and
uncertainty that having an indictment pending for so many years inflicts upon

an accused. See Smith v. Hooey, 393 U.S. 374, 379, 89 S.Ct. 575, 21 L.Ed.2d
607 (1969).
17

I would find bad faith on the part of the state; and when I include bad faith in
the balancing test of Barker, the scale is tipped in favor of Ricon
notwithstanding his uncertain showing of actual prejudice.

This historical background is set forth in State v. Lewis (1973) 18 N.C.App.


681, 198 S.E.2d 57

This part of the history appears in State v. Lewis (1968) 274 N.C. 438, 164
S.E.2d 177, 178-9

274 N.C. 438, 164 S.E.2d 177

7 N.C.App. 178, 171 S.E.2d 793

United States v. Spoonhunter (10th Cir. 1973) 476 F.2d 1050, 1057. To the
same effect: United States v. Cary (1972) 152 U.S.App.D.C. 321, 470 F.2d
469, 472

Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

United States v. Canty (1972) 152 U.S.App.D.C. 103, 469 F.2d 114, 118
(quoting from Blunt v. United States (1968), 131 U.S.App.D.C. 306, 404 F.2d
1283, 1287.) To the same effect, see United States v. Lynch (D.C.Cir.1974) 499
F.2d 1011, 1018, n. 6; United States v. Heinlein (1973) 160 U.S.App.D.C. 157,
490 F.2d 725, 729, n. 4; United States ex rel. Little v. Twomey (7th Cir. 1973)
477 F.2d 767, 770, cert. denied 414 U.S. 846, 94 S.Ct. 112, 38 L.Ed.2d 94

See United States v. Perez (5th Cir. 1974) 489 F.2d 51 (36 months), cert.
denied 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664; United States v.
Drummond (5th Cir. 1974) 488 F.2d 972 (39 months); United States v.
Churchill (1st Cir. 1973) 483 F.2d 268 (26 months); United States v. Fasanaro
(2d Cir. 1973) 471 F.2d 717 (4 years), vacated and remanded for further
consideration in light of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101; Fasanaro v. United States, 408 U.S. 916, 92 S.Ct. 2505, 33
L.Ed.2d 329; United States v. Rosenstein (2d Cir. 1973) 474 F.2d 705 (34
months); United States v. Reynolds (6th Cir. 1973) 489 F.2d 4 (22 months),
cert. denied 416 U.S. 988, 94 S.Ct. 2395, 40 L.Ed.2d 766; United States v.
Saglimbene (2d Cir. 1972) 471 F.2d 16 (6 years), cert. denied 411 U.S. 966, 93
S.Ct. 2146, 36 L.Ed.2d 686; United States v. DeLeo (1st Cir. 1970) 422 F.2d

487 (29 months), cert. denied 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648
See, also, United States v. Alo (2d Cir. 1971) 439 F.2d 751, 756, where the
defendant was secretly indicted, the Government failed to proceed because of
desire to conceal improper surveillance, and defendant was finally re-indicted
three years later. The Court dismissed the claim of violation of the right to a
speedy trial primarily because there was no showing of "credible possibility of
prejudice" (emphasis in opinion). Certiorari was denied in 404 U.S. 850, 92
S.Ct. 86, 30 L.Ed.2d 89, reh. denied 404 U.S. 961, 92 S.Ct. 307, 30 L.Ed.2d
282, with a dissent in 414 U.S. 919, 94 S.Ct. 215, 38 L.Ed.2d 155.
9

See Barker, 407 U.S. at p. 530, 92 S.Ct. at p. 2192:


"The length of the delay is to some extent a triggering mechanism. Until there
is some delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance. Nevertheless, because of
the imprecision of the right to speedy trial, the length of delay that will provoke
such an inquiry is necessarily dependent upon the peculiar circumstances of the
case."

10

United States v. Churchill, supra, 483 F.2d at 273

11

At the October 1967 Session of Superior Court of Nash County, the Presiding
Judge found "That since the defendant returned from Cherry Hospital he has
been in custody of the Sheriff of Nash County and that at each term of court for
the trial of criminal cases since his return to Nash County, the State has been
ready for the trial and disposition of this case, and that each and every time the
case has been called, the defendant at his own request has had same continued
until this date (October 1967)."

12

State v. Lewis (1973) 18 N.C.App. 681, 198 S.E.2d 57, 62

13

In United States v. Canty, supra, 469 F.2d at p. 119, the Court described this
choice of the prosecution as "not entirely irrational." Cf. also, Gerberding v.
United States (8th Cir. 1973) 471 F.2d 55, 61

14

Jordan v. Beto (5th Cir. 1973) 471 F.2d 779, 781

15

See United States v. Cabral (1st Cir. 1973) 475 F.2d 715, 718; United States v.
Toy (1973), 157 U.S.App.D.C. 152, 482 F.2d 741, 743. In the latter case, the
Court said:
" * * * While the Government agrees that the delay was most unfortunate, it
denies that the delay was intentional to gain an advantage, and assigns

institutional reasons as the cause. A delay due to 'negligence or overcrowded


courts,' 407 U.S. at 531, 92 S.Ct. 2182, is not necessarily fatal to a valid
prosecution, though it is a factor to be considered."
16

See United States v. Dyson (5th Cir. 1972) 469 F.2d 735, 740:
" * * * While it is true that Dyson never demanded trial it is not clear that he
was aware of his right to do so since counsel was not appointed to represent
him until March 30, 1972, just four days before trial."

17

198 S.E.2d at 62

18

See Moore v. Arizona (1973) 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183, but
cf., United States v. Alo (1973) 414 U.S. 919, 94 S.Ct. 215, 38 L.Ed.2d 155

19

United States v. Geller (9th Cir. 1973) 481 F.2d 275, 276

20

United States v. Reynolds (6th Cir. 1973) 489 F.2d 4, 7, cert. denied 416 U.S.
988, 94 S.Ct. 2395, 40 L.Ed.2d 766

21

Jones v. Wainwright (5th Cir. 1974) 490 F.2d 1222, 1225; United States v.
Morse (1st Cir. 1974) 491 F.2d 149, 157; Godbold, Speedy Trial Major Surgery
for a National Ill, 24 Ala.L.Rev. 265, 283-4 (1972)

22

Cf., Smith v. Hooey (1969) 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607

23

439 F.2d at p. 756 (Italics in text)

We were also told that Ricon was scheduled to be released unconditionally on


May 7, 1975. If that has occurred, I think that this appeal has become moot